Even without these inflammatory and personal attacks, Trump faces a very steep hill to climb in a defamation case. As a public figure, he is subject to the standard created in New York Times v. Sullivan, where the Supreme Court held that the first amendment requires breathing space for free speech in criticizing public officials. Accordingly, it established an “actual malice” standard requiring a showing that a false statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.” That standard was later extended to not just public officials but public figures.
As president, Trump denounced the standard and called for its removal — a move that I criticized at the time. While I have questioned the need for a public figure standard (as opposed to a public official standard), I have noted that Trump has been a beneficiary of this rule — as this week’s personal attacks demonstrates.
Trump has brought a series of rejected defamation actions, including against CNN.
Here is the nut of the complaint:
“One of the most pervasive associations between the plaintiff and Hitler that CNN has employed is its use of the term the ‘Big Lie’ in relation to the plaintiff’s stated concerns about the integrity of the election process for the 2020 presidential election,” read the court filing. “In its campaign of dissuasion, CNN has branded the plaintiff as one who subscribes to the notion of the ‘Big Lie’… a direct reference to a tactic employed by Adolf Hitler and appearing in Hitler’s Mein Kampf.”
The complaint added:
CNN’s campaign of dissuasion in the form of libel and slander against the Plaintiff has only escalated in recent months as CNN fears the Plaintiff will run for president in 2024. As a part of its concerted effort to tilt the political balance to the Left, CNN has tried to taint the Plaintiff with a series of ever-more scandalous, false, and defamatory labels of “racist,” “Russian lackey,” “insurrectionist,” and ultimately “Hitler.”
There is no question that CNN has aired unrelenting attacks on Trump since his inauguration. Moreover, such statements are not entirely made on the commentary side of the network but with reporters and hosts covering stories. Notably, Fox is being sued for defamation over coverage of Dominion voting machines.
Many of these characterizations may be attacked as unprofessional but likely fall short of the actual malice standard. In addition, many are likely to be treated as opinion. Aspects of the filing are reminiscent of Wilkow v. Forbes, Inc., 241 F.3d 552 (7th Cir. 2001) where a journalist with Forbes was sued for harsh characterizations of a lawyer and his practice. Judge Frank Easterbrook wrote that “although the article drips with disapproval of Wilkow’s (and the judges’) conduct, an author’s opinion about business ethics isn’t defamatory under Illinois law.”
It is possible to prevail if the allegation is factual and specific and false.
The public figure standard was established in Curtis Publishing v. Butts (1967). The case involved a March 23, 1963 edition of The Saturday Evening Post alleging that former University of Georgia football coach Wallace Butts conspired with University of Alabama coach Paul “Bear” Bryant to fix a 1962 football game in Alabama’s favor. In a 5-4 decision, Chief Justice Warren wrote a concurrence that extended the ruling in New York Times v. Sullivan on public officials to public figures. He found the same reasons for applying the higher standard to public officials as present in cases involving public figures:
[I]t is plain that, although they are not subject to the restraints of the political process, “public figures,” like “public officials,” often play an influential role in ordering society. And surely, as a class, these “public figures” have as ready access as “public officials” to mass media of communication, both to influence policy and to counter criticism of their views and activities. Our citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of “public officials.” The fact that they are not amenable to the restraints of the political process only underscores the legitimate and substantial nature of the interest, since it means that public opinion may be the only instrument by which society can attempt to influence their conduct.
The Court ruled in favor of Butts, and The Saturday Evening Post was ordered to pay $3.06 million (later reduced to $460,000) to Butts in damages. That case, however, involved a specific allegation of a fixed game, not hyperbolic or partisan rhetoric.
Notably, Curtis was decided joined with Associated Press v. Walker, involving former Gen. Edwin Walker who opposed desegregation. In one article, the Associated Press claimed that Walker had “led a charge of students against federal marshals” and “commanded” those opposing the admission of James Meredith at the University of Mississippi. He prevailed at trial. However, the Court found that AP was not liable under the actual malice standard, even as a matter of reckless disregard. Justice John Marshall Harlan II wrote for himself and three other justices (and joined by concurring justices) in noting that Walker was a “public figure,” given the fact that “his personal activity amount[ed] to a thrusting of his personality into the ‘vortex’ of an important public controversy.” Harlan also noted that Walker “commanded sufficient access to the means of counterargument to be able to expose through discussion the falsehood and fallacies of the defamatory statements.” Liability, Harlan concluded, should only follow “a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”
These cases explain why I am skeptical that former President Trump can successfully maintain this action. Even the specific criminal allegation of being an “insurrectionist” is a matter of opinion. It is doubtful that a court will see such over-heated rhetoric as meeting the high standard under the actual malice test.
The case is Trump v. CNN, No. 0:22-cv-61842, in the United States District Court for the Southern District of Florida.